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CentralOhio.com

Ohio’s once-model law on open public records and meetings has taken a few hits from added exemptions and ambiguity surrounding public-private partnerships and social media.

Some accessibility concerns are new, from archiving emails to accessing records from public-private partnerships, such as JobsOhio or the Lake Erie Correctional Institution. Other concerns are as old as the statute itself — uneducated or uncooperative public officials.

Tom Hodson, a communication professor at the E.W. Scripps School of Journalism at Ohio University and former judge, said Ohio historically has had one of the most liberal open records laws in the country, favoring disclosure of records. Even the state courts have been fairly adamant that “open means open” when dealing with government documents, he said.

“Where this breaks down, it doesn’t always translate to the local governmental units,” Hodson said.

Ohio Attorney General Mike DeWine, who is tasked with educating other officials about Ohio’s public records and meetings law, said reasonable people can disagree about exemptions, but access is key and Ohio’s law accomplishes that.

“It’s a central part of democracy for the public to be informed,” DeWine said.

'Death by a thousand cuts'

Ohio law requires access to public records and public meetings, but the Ohio General Assembly has added 29 exemptions to the law and sprinkled hundreds of others throughout the Ohio Revised Code to date.

The number of exemptions and courts’ interpretation of them have made access to public records more difficult, said Dennis Hetzel, executive director of the Ohio Newspaper Association and president of the Ohio Coalition for Open Government.

In some Ohio jurisdictions, police investigations aren’t considered closed, and therefore can be withheld, while the defendant lives and could make another filing. County recorders pushed for a fee for individuals who print out electronic records on their personal computers. Rep. Lou Terhar, R-Cincinnati, recently circulated a petition to shield the names and résumés of applicants to state jobs from public record laws. Their information would be available only after candidates accept interviews for the job.

“It’s becoming death by a thousand cuts,” Hetzel said.

Carrie Wood, an attorney with the Ohio Innocence Project, which identifies innocent inmates in Ohio’s prisons, said being denied police reports and other court records is “incredibly frustrating,” especially because many requests prove inmates don’t have a case. Compliance varies from department to department, which is a problem in itself, she said.

Hodson said he doesn’t anticipate any large changes to the state’s open records law, but there could be small exemptions added annually by legislators looking to protect one group of people.

“That is something we all need to be vigilant about,” he said.

Challenges to access

Another impediment to accessibility can be public-private partnerships, which can be subject to or exempt from public records requests depending on court rulings.

A 2006 Ohio Supreme Court decision, which was closely divided 4-3, found private entities are not required to produce public records unless they are the “functional equivalent” of a public office. Justice Paul Pfeifer established a four-part test — which reviews the level of government funding and whether it performs a governmental function — that has been applied to other private-public partnerships since.

“While there is good public policy reasons to look at (public-private partnerships), the law at best seems murky,” Hetzel said. “How can you track how taxpayers’ dollars are being spent?”

Another question is how public offices, especially small townships and school districts, will respond to the Internet age.

Ohio law does not require that public agencies keep their records electronically or accessible online, but agencies that do make work easier for the public, said Carl Horst, spokesman for the Ohio Association of Realtors, whose members check county auditors’ websites for information about property.

“You can do the searches at a time or place that is convenient,” Horst said.

Electronic records provide wider access, but agencies need money for the initial programs and expertise to update them, said state archivist Fred Previts, a member of the Ohio Electronic Records Committee, which started in 1998 to provide best-practice suggestions to local government on digital records.

“They are trying to organize their files the best they can. We have some pretty small townships out there and some pretty small schools,” DeWine said.

Electronic records evolve quickly; oftentimes quicker than the law. Social media, for example, creates quandaries for local government officials who ponder whether a tweet needs archived or whether cloud computing can be requested, Previts said.

Mediation improving access

A bright spot in the public records debate is DeWine’s new public records mediation program, Hetzel said. Since the program started in June, the Ohio Attorney General’s Office has received 59 requests for mediation, which involves an assistant attorney general walking parties through the law before or in lieu of costly lawsuits.

“We think the program is going well. It’s certainly in its early stages,” DeWine said. “I feel good about where we are.”

Of the requests, seven resulted in mediation; 27 were resolved before mediation and others were not appropriate for mediation for a number of reasons — four were pending in court and one was from an individual who wanted to remain anonymous. Most of the requests came from residents seeking information; a couple each came from attorneys and journalists.

Fremont attorney Andy Mayle said the mediation program helped prompt the Cleveland Municipal Court to hand over applications from the city for a traffic violations bureau, but it’s a sad commentary on the state of public records that the mediation program is needed at all.

“The government agency should timely fulfill the request,” Mayle said. “(The program) adds some oversight, but it also adds one more layer of people to talk to.”

The program is limited to disputes with local governments and school boards, because the Ohio Attorney General’s Office represents state agencies and cannot serve as a party and mediator at the same time, DeWine said.

Buckeye Lake resident Bonnie Mansfield, who participated in mediation to obtain impounded vehicle reports from Kirkersville, said the assistant attorney general had little power to force release of the documents.

“The mediation was moot. We agreed to disagree,” said Mansfield, adding that she applauded the office’s effort at openness regardless. “It might not have worked for me, but it might work for someone else.”